Dennis J. Merley, Editor
Felhaber, Larson, Fenlon and Vogt, P.A.

Vol. 17, No. 11
January 2008

RACE DISCRIMINATION

Judge says Disney World staffing policies aren't Mickey Mouse

An unusual angle on race discrimination was recently presented in a case involving Walt Disney World and its desire to hire cultural representatives in the World Showcase pavilions. Disney got its wish ― let's see how the case was decided.

Employee claims firing was 'Goofy'

Anesh Gupta began working for the Walt Disney World Company in May 2003 as a college intern, and by June 2005, he was working as a server at Akershus, the Norwegian-themed restaurant at Disney's Epcot Center in Orlando, Florida. Akershus and the rest of the Norway Pavilion are part of Epcot's World Showcase, described by the court as "a permanent international exposition that strives to provide guests an opportunity to experience and learn about the culture, traditions, and accomplishments of eleven nations of the world."

Disney required many of its employees in the World Showcase to be "cultural representatives," who would "interact with guests and share the culture, tradition, language and history of the country they are representing." Although Disney didn't require cultural representatives to come from the particular nation they were representing, they were required to speak the country's language and be able to speak English well enough to explain their "customs, traditions, and culture to guests based on [their] first-hand experience." According to the company, an individual could serve as a cultural representative if he met those standards, regardless of his national origin, race, or color. Disney presented evidence of individuals of Asian descent who were qualified to work in the Norway Pavilion because they were culturally authentic and Middle Eastern, Asian, and black individuals working in the Canadian Pavilion.

At the time Gupta ― who is Asian ― began working at Akershus, Disney employed some servers during its "Princess Storybook Breakfast" held at the Norway Pavilion who weren't culturally authentic to Norway. The Princess Storybook Breakfast was an American meal and was served before the rest of the World Showcase opened later in the day. In April 2005, Disney changed the breakfast to an "all day dining experience with a Norwegian theme" and discontinued the use of "individuals not culturally authentic to Norway." Around the same time, Gupta, who had been working as a stocker at the restaurant, became interested in working as a server. He worked as a server at Akershus for about two weeks, mostly on the breakfast shift, until June 26, when he was informed that he could no longer serve at the Norwegian restaurant. On June 28, another "nonculturally authentic" server also was informed that he could no longer work as a server at Akershus.

Gupta sued Disney in a Florida federal court, alleging employment discrimination on the basis of race, national origin, and color in violation of Title VII of the Civil Rights Act of 1964. The federal district court dismissed his case before trial, so he appealed to the Eleventh Circuit, which covers Florida.

Court says Disney policy is 'Snow White'

On appeal, Gupta argued that he had presented "both direct and circumstantial evidence of discrimination" to the federal district court and that "Walt Disney's explanation about cultural authenticity requirements was created after the fact to cover illegal discrimination." The Eleventh Circuit disagreed and upheld the dismissal of his claim.

The Eleventh Circuit first held that Gupta failed to present direct evidence of illegal discrimination, noting, "Walt Disney's explanation that Gupta was not allowed to work at the Norwegian restaurant because Gupta was not 'culturally authentic' is not direct evidence of illegal discrimination." Rather, the company's evidence showed that cultural authenticity depended on an individual's ability "to share authentically a culture," not on the individual's national origin, race, or color.

Next, the court held that Gupta also failed to present circumstantial evidence of discrimination. He would be entitled to an inference of discrimination if he established a prima facie (minimally sufficient) case by showing that he was a member of a protected class and that he was subject to an adverse employment action, in contrast with similarly situated employees outside the protected class. He failed in that endeavor for two reasons.

First, Gupta didn't establish that he was "qualified to be a server at the Norwegian restaurant." Disney required servers at the restaurant to be culturally authentic to Norway. Gupta admitted, however, that he had visited Norway for only one or two days and didn't have firsthand knowledge of Norwegian culture. Because he wasn't culturally authentic to Norway, he wasn't qualified to work as a server at Akershus. Although there was evidence that other nonculturally authentic individuals had worked in the Norwegian restaurant in the past, their service wasn't relevant because it occurred either during the Princess Storybook Breakfast shift or was in violation of Disney policy.

In addition, Gupta failed to establish that he was treated differently than other similarly situated employees. Disney had informed the other nonculturally authentic server that he could no longer serve at the Norwegian restaurant two days after it informed Gupta. "If a plaintiff fails to show the existence of a similarly situated employee, [dismissal before trial] is appropriate where no other evidence of discrimination is present." Gupta v. Walt Disney World, 2007 WL 4165934 (11th Cir., Nov. 27, 2007).

Fairy-tale ending?

This is an unusual situation and not likely to be one that most of you will encounter. Still, it reminds us of how important it is to understand the fundamental reasons for job requirements and to be consistent in applying hiring criteria. It also may offer some comfort that lawsuits can happen anywhere, even in the fairy-tale land of Disney.

Copyright 2008 M. Lee Smith Publishers LLC

MINNESOTA EMPLOYMENT LAW LETTER does not attempt to offer solutions to individual legal problems, but rather, to provide information about recent developments in Minnesota employment law. Individuals having questions about specific legal issues should consult with the attorney of their choice.